Canada: Employee's Right To Privacy Extends To Information Stored On Employer's Computer

The Supreme Court of Canada has concluded that employees may
reasonably expect privacy in the information contained on workplace
computers, where personal use is permitted by the employer or
reasonably expected. The decision in R. v. Cole, 2012 SCC 53, may
surprise some employers who felt they had unlimited access to
information stored on employer-owned computers, laptops,
smartphones and other devices provided to employees.

The Facts in R. v. Cole

A high school teacher was charged with possession of child
pornography following the discovery of nude and partially nude
photographs of an underage female student on the accused's
laptop, by a technician performing routine maintenance. The school
board who employed Cole provided him with a laptop computer for his
work, but permitted him to also use it for personal use. Written
school board policy stated that all data and messages generated on,
or handled by, the school board's computer equipment would be
considered property of the school board and could be subject to
access by school administrators in certain situations. It was
unclear from the policy, however, whether the laptops would be
subject to general searches or random monitoring by the
employer.

The school board technician who discovered the photographs
informed the school principal. The photographs were copied and
provided to the police. With the consent of the laptop's owner
(the school board), the police then conducted a search of the
laptop without a search warrant. At trial, the accused applied,
successfully, to exclude the evidence obtained from the search of
the laptop on the ground that it was obtained in violation of
section 8 of the Canadian Charter of Rights which protects against
unreasonable search or seizure. The Crown appealed and the case
eventually found its way to the Supreme Court of Canada.

The Supreme Court's Decision

The fact that the school board owned the laptop, and that its
written policy stipulated that all data and messages generated on,
or handled by, the school board's computer equipment were
considered to be the property of the school board, was not enough
to eliminate entirely the employee's reasonable expectation of
privacy. Where an employee's personal use of workplace
computers is permitted or reasonably expected by the employer, the
Court found the employee has a reasonable expectation of privacy in
the personal information contained in those computers. A written
policy may diminish the employee's expectation of privacy in
work computers, laptops, tablets or smartphones, but it can't
remove the expectation entirely.

Where a person has a reasonable expectation of privacy, it is
protected by s. 8 of the Charter. The police in this case were
found to have infringed the accused's right to be protected
against unreasonable search and seizure. Although the school board
employer had the lawful rights to seize and search the laptop, that
right of the employer did not give the police the same power. After
the school board informed the police of the information discovered,
the police should have obtained a warrant to search the computer.
Even though the evidence was obtained in an unconstitutional
manner, however, the Supreme Court refused to exclude its use in
the criminal proceedings.

The Trend Toward Greater Protection of Privacy Rights
Extends to the Workplace

Although R. v. Cole was a criminal law case, it has great
significance to employment law. British Columbia is one of only
four provinces in Canada with privacy legislation. The tort of
violating the privacy of another person is recognized and protected
by the BC Privacy Act. The B.C. legislation does not, however,
provide a precise definition of what constitutes an invasion of
privacy. The decision in R. v. Cole suggests there are limits over
just how far employers can go in monitoring the information stored
on the digital devices they supply to their employees. The case
suggests that employees can expect some privacy in the personal
information they generate or store on the employer's
devices.

In provinces like Ontario, which don't have similar privacy
legislation, the courts have recently recognized a new tort for
"intrusion upon seclusion". In 2012, the Ontario Court of
Appeal became the first Appellate Court in Canada to recognize the
common law tort of invasion of privacy. In Jones v. Tsige, 2012
ONCA 32, Ms. Jones and Ms. Tsige worked at different branches of
the Bank of Montreal. When Ms. Tsige became involved in a
relationship with Ms. Jones' former husband, Ms. Tsige accessed
Ms. Jones' personal bank account information at least 174
times. There was no legitimate reason for viewing the information
and it was contrary to the bank's written policy and code of
conduct for employees. The bank disciplined its employee, Ms.
Tsige, for the unauthorized access to Ms. Jones' account, Ms.
Jones then successfully sued Ms. Tsige for "intrusion upon
seclusion" which the court described as follows:

"One who intentionally intrudes, physically or otherwise,
upon the seclusion of another or his private affairs or concerns,
is subject to liability to the other for invasion of his privacy,
if the invasion would be highly offensive to a reasonable
person."

The decision in R. V. Cole confirmed that employees do have a
reasonable expectation of privacy with respect to information
stored on workplace computers. The case has changed the old blanket
presumption that employees had no right or expectation of privacy
on workplace computers. Now, the expectation of privacy depends on
written policies, employer practices and customs governing the use
of workplace computers.

These recent court decisions suggest that employers could face
litigation if they go too far in monitoring the digital devices
they supply to their employees. Employer access to personal
information on workplace computers is now more likely than ever, to
be scrutinized and employers too could be held accountable if they
intrude on an employee's reasonable expectation of privacy.

In a day and age when more and more employers are issuing
laptops, tablets, smartphones and other devices to employees to
ensure they are connected to the office "24/7", it is
becoming more difficult for employees to separate their work life
from their personal life. The eight-hour work day is becoming a
thing of the past. As the lines get blurred between work and
personal time, it is not surprising that the use of computer and
other devices for work and personal use also becomes blurred.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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